OR Supreme Court
by: Abassos • September 20, 2010 • no comments
The Oregon Supreme Court recently granted review on a few interesting criminal cases involving preservation, forcible compulsion and pretext communications.
State v. Walker was the terrible preservation case from a few months ago where the attorney correctly argued that the search was beyond the scope of the warrant but didn't argue the right subtype of "beyond the scope". The issue, as stated by the S.Ct.:
(1) When a litigant cites to state and federal constitutional provisions in support of an argument, but fails to detail how a state constitutional analysis compels a different result than a federal constitutional analysis, is that argument rendered unpreserved for appellate review?
(2) When a trial court asks trial counsel to respond to an issue in writing,does counsel's failure to relitigate arguments not requested by the trial court indicate anabandonment of those arguments?
Walker will also review the more substantive issue of whether a search warrant for a house authorizes the search of a purse on a person who just happens to be at the house.
State v. Marshall will address the definition of forcible compulsion for Sex Abuse I. Does it mean more than non-consensual contact? Does it mean physical force? The appellate court found that it means "to exercise physical strength or power that causes the person to act or to submit to being acted upon against the person's will. Victim resistance is not required." In the totality of the circumstances, a jury could have found such force where 27 year old defendant went into 14 year old defendant's bedroom at night, crawled on top of her, put her hand down his pants while she kept telling him no and pushing him away.
In State v. Davis, police got the victim to ask defendant specific questions at their direction before he was charged but after he was represented and had asserted his right to remain silent. Defendant was not in custody, hadn't yet been charged and didn't know he was talking to a police agent. Because the defendant wasn't in compelling circumstances, Miranda doesn't apply. The issue for the court is:
Whether the Oregon Constitution guarantees a freestanding "right to remain silent" apart from Oregon's Miranda protections (which apply only when an individual is in custody or in other compelling circumstances).
